So, we can just apply to restore our BVI company to the register, right? Oh, I see…

We regularly assist clients to restore BVI companies to the Register of Companies (“the Register”). Clients understandably assume that restoration applications are straightforward. Unfortunately, the law and practice relating to the restoration applications is quite nuanced and involved. This short note summarises the two types of restoration application under the new rules, which came into force on 1 January 2023. We have also provided a table setting out the fees and penalties associated with making restoration applications. In terms of our fees, given the way that Spencer West BVI is structured, we can be very competitive in this space and, depending on the background facts, we may even be able to agree a fixed fee or to cap our fees!

Restoration Applications

Depending on the background circumstances, restoration applications will need to be made to the Registrar of Corporate Affairs (“the Registrar”) or to the High Court (“the Court”). Applications to the Registrar are considerably cheaper than applications to the Court, where it is necessary to prepare written evidence and for an advocate to attend the Court to move the application.

Restoration Applications to the Registrar

So long as the application is in the approved form and the Registrar is satisfied that the following conditions have been satisfied, she can restore a company to the Register:

a.????? the company was carrying on business or in operation on the date of strike off and dissolution;

b.????? a Registered Agent has agreed to act;

c.????? the Registered Agent has made a declaration that the company’s records have been updated;

d.????? where company property has vested in the Crown bona vacantia, the Financial Secretary has:

???????????????????????? i.???????? signified to the Registrar that the Crown has consented to the restoration; or

??????????????????????? ii.???????? consented or refused to consent to the restoration within seven days of being asked;

e.????? the company has paid the restoration fee and any outstanding penalties; and

f.?????? the Registrar is satisfied that it would be fair and reasonable for the company to be restored.

A restoration application can be made by the company, a creditor, a member, or a liquidator, and must be made within five years of the date that the Registrar filed notice of striking off in the BVI Official Gazette. If the Registrar refuses to restore the company to the Register, the company, a creditor, a member, or a liquidator has ninety days to appeal that decision. Where a company is restored to the Register it is deemed never to have been struck off and dissolved.

Restoration Applications to the Court

The restoration application can be made to the Court where any of the following conditions apply:

a.????? the company was struck off and dissolved following a solvent or compulsory liquidation;

b.????? the company was not carrying on business or in operation on the date of dissolution;

c.????? where the purpose of the restoration is to:

???????????????????????? i.???????? initiate, continue or discontinue legal proceedings;

??????????????????????? ii.???????? make an application for the company’s property that has vested in the Crown bona vacantia to be returned to the company;

d.????? in any other case where the restoration application cannot be made to the Registrar.

The restoration application may be made by an extended list of people, including:

a.????? a creditor, former director, or former member;

b.????? a person that was in a contractual relationship with the company;

c.????? a person with a potential legal claim against the company;

d.????? any other person that can establish an interest in having the company restored.

A potential applicant has five years from the date of dissolution to move the restoration application. The application must be served on the Registrar, the Financial Secretary and, if at any time prior to the dissolution the company was a regulated person, the Financial Services Commission (“the FSC”). The Registrar, the Financial Secretary and/or the FSC may oppose the restoration application.

At the hearing of the restoration application, the Court may:

a.????? make an order restoring the company subject to conditions; and

b.????? give such directions or make such orders as it considers necessary or desirable for the purpose of placing the company and any other persons as nearly as possible in the same position as if the company has not been struck off and dissolved.

Note that if a company was dissolved following the completion of its solvent or compulsory liquidation, the Court will not restore it to the Register unless the following conditions are satisfied:

a.????? the applicant nominates a person to be liquidator of the restored company;

b.????? the nominated liquidator consents to act and is eligible to act as liquidator;

c.????? provision has been made or will be made for the liquidator’s expenses and remuneration.

Transitional Provisions

The above summaries set out the law as at the date of this email, as it applies from 1 January 2023 (“the Effective Date”). Prior to this date, a company that was struck off (“an Existing Struck Off Company”) had seven years from the strike off date to apply to be restored to the Register, and a company that had been dissolved (“an Existing Dissolved Company”) had a period of ten years from the date of dissolution (“the Existing Period”) to apply to be restored to the Register. Following the entry into force of the new rules on the Effective Date:

a.????? every Existing Struck Off Company had six months from the Effective date to make a restoration application under the old rules. That deadline came to an end on 31 June 2023, and it follows that Every Existing Struck Off Company is now caught by the new rules (as set out here);

b.????? from the Effective Date, every Existing Dissolved Company had five years to apply to the Court to be restored. Where the original Existing Period ended on a date (“the Earlier Date”):

???????????????????????? i.???????? within five years of the Effective Date, the Existing Dissolved Company has up to the end of the Earlier Date to apply to be restored; and

??????????????????????? ii.???????? after five years from the Effective Date, the Existing Dissolved Company has up to the end of that five-year period within which to apply for restoration.

Where an Existing Struck Off Company is deemed dissolved pursuant to b(i) or (ii), the Registered Agent of the company is deemed to have resigned on the dissolution date.